The editors of the Wall Street Journal are not particularly happy about the Supreme Court’s decision in Department of Homeland Security v. Regents of Univ. of Cal.:
We support legalization for these 700,000 or so immigrants, as a matter of fairness and as contributors to American life. But this is an issue for Congress. The Court’s ruling on administrative-law grounds reads like a desired policy outcome in search of justifying legal logic, and it is likely to do long-term harm to the Constitution’s separation of powers and maybe to immigration reform.
Chief Justice John Roberts joined the four liberals, as he so often has, in ruling that the Trump Administration hadn’t properly followed the Administrative Procedure Act (APA). The Court remanded the rescission back to DHS to rewrite with a formal rule-making with notice and comment period.
This may seem routine, but the problem is that the Obama Administration never followed the APA when it issued Daca in 2012. Daca was never tested in court, but the Fifth Circuit Court of Appeals in 2015 issued an injunction against a companion order to Daca. The Supreme Court upheld that injunction, and the Trump Administration had every reason to believe Daca was thus illegal too.
“Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law,†Justice Clarence Thomas writes in a dissent joined by Samuel Alito and Neil Gorsuch. “On the contrary, this is anything but a standard administrative law case.â€
but I am persuaded by Amy Howe’s analysis at SCOTUSBlog that the decision was the right one:
At the oral argument last November, the main issue before the Supreme Court wasn’t whether the Trump administration has the power to end DACA, because everyone agrees that it does. Instead, the question was whether the administration went about it in the right way. Lawyers for the challengers told the justices that the administration had not provided a good reason for its decision to end DACA because it didn’t want to take responsibility for its actions. Instead, they suggested, the administration wanted to blame its decision on the courts. In effect, the administration was claiming that it didn’t necessarily want to end DACA, but that it had to because the courts had said the program was illegal. U.S. Solicitor General Noel Francisco pushed back, telling the justices that the administration “owns†its decision to terminate DACA.
Today Chief Justice John Roberts, joined by the court’s four more liberal justices, agreed with the challengers that the decision to terminate DACA violated the APA. Before they could reach that key issue in the case, however, they had to dispose of a threshold question: whether courts have the power to review the decision to end DACA in the first place. The majority made quick work of this question, rejecting the Trump administration’s argument that the decision was unreviewable. As a general rule, Roberts explained, courts will be able to review an agency’s action, unless (among other things) the action falls within the agency’s discretion. But courts have read that exception “quite narrowly,†Roberts noted. And the government’s efforts to compare one example of an agency action that is not subject to judicial review – a decision not to institute enforcement proceedings – to the termination of DACA fell short in the majority’s eyes because DACA is not a “passive non-enforcement policy†but instead a “program for conferring affirmative immigration relief.†“The creation of that program—and its rescission—is an ‘action [that] provides a focus for†courts to review, Roberts concluded.
and
Roberts and three of the more liberal justices – Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan – rejected the DACA recipients’ claim that the Trump administration’s decision to end DACA violated the Constitution because it was motivated by an intent to discriminate. None of the factors that the challengers cited can establish such a claim, either alone or taken together, Roberts wrote.
Contrary to the editors, I think this is an instance of arriving at the wrong policy for the right reasons and, fortunately, there is a clear path to rectifying the situation: the Trump Administration should follow the correct procedures. That speaks to my repeated criticism. The president does not appreciate the workings of government sufficiently. This decision could have been avoided.
That your predecessor was a scofflaw and ruled by edict so you should, too, is a lousy argument. It does not go to a good place while affirming the rule of law does. The editors of the WSJ are right: this is a matter that should be determined by law not by presidential edict.
Beyond the legal reasoning; it is important to look at the practical consequences.
Because the repeal was not just punted for more legal arguments; but complete rejected; Congress is under no pressure to fix DACA.
The other problem is the incentives it gives. Too many will infer that a President with the “right†views, a Congress prefers to do little, can make regulations that contravene laws and the courts will prevent any attempt at challenges or repeals. Is DACA a true one-off or a precedent others will use?
If a precedent, that is a recipe for a lawless executive and loss in the trust in the courts.
I think you’ve got the incentives backwards. This decision provides a good incentive for the Trump Administration to cross all the Ts and dot all the “i”s, following the procedures laid out in the APA. Should the SCOTUS reject it then, it would clearly be for ideological and/or partisan reasons. Additionally, had this decision been in place in 2016 it would have made it easier to challenge the Obama Administration on procedural grounds since they didn’t follow the APA, either.
The Congress rarely has an incentive to act. In general they’d rather that an administration of whichever party happens to hold the majority acted by edict while they kibbitzed from the sidelines.
‘I think you’ve got the incentives backwards. This decision provides a good incentive for the Trump Administration to cross all the Ts and dot all the “iâ€s, following the procedures laid out in the APA.’
You’re assuming John Roberts would opine in good faith. I don’t think he’s capable of that, because for whatever reason he apparently believes that Obama’s EO should remain standing. Even if all of the T’s had been crossed and the I’s dotted he’d have found fault with the capitalization. And so on.
He did the same thing with the 2020 census citizenship question, that the OMB administration could legally add it to the census but prevented it from appearing on the census because not all the nits had been picked and those that were had not been picked with a regulation comb.
Ditto Obamacare. The government didn’t argue that the mandate was a tax, but in order to keep the mandate he decided on his own that it was a tax.
‘Should the SCOTUS reject it then, it would clearly be for ideological and/or partisan reasons.’
I think it’s already pretty obvious that he decided it on strictly ideological and/or partisan grounds.
Roberts is a classic political lawyer. He starts with ends and then twists and tortures the law to justify those ends.
The problem was pre-2017, the previous administration held that DACA was not a regulation and as such was not reviewable by the APA. They also said and the courts split that no challenger had standing to sue on the matter.
Indeed; the problem of standing is present for anyone who tries to challenge DACA again.
I’ve said it before. I think that the practice of law needs to be separated into advocates and non-advocates. Lawyers should go to law school and should be advocates. Judges should go to judge school and not be advocates.
Apparently now the Trump administration can create numerous programs without notice and comment rulemaking during the next several months and the Biden administration will be stuck with them until it performs notice and comment rulemaking to rescind them.
The Administrative Procedure Act makes rulemaking transparent and informed by alternative approaches. If its applied too strictly, Presidents cannot implement their policies; there is always another alternative and more discussion possible. Here the stringency is pretty crazy:
* Trump campaigned to repeal DACA; this is not some obscure program that did not get sunlight.
* Roberts concedes that at least half of DACA is illegal, or at the very least the issue of whether DACA could grant affirmative benefits (work permit; SS & Medicare benefits) was a legal issue, and DHS was bound to follow the Attorney General’s opinion that it was illegal.
* The remaining part of DACA which simply gave form to the executive’s discretion in prioritizing removals restricts the President from controlling his bureaucracy. And since DACA was only in existence for five years, the alternative of no DACA is not of unknown quantity. There are not under-analyzed technical issues that would benefit from expertise.
That’s a fine statement of the risk I think has been created.
AFAIK, the common-law preference for hundreds of years is judges have a background of practicing law.
Does civil law having a concept of a judges school?
A simpler reform is to diversify the judiciary from the “big 5” or “big 12” law schools. There are any number of “group think” issues when all current supreme court justices are Harvard / Yale law school alumni.
There is also a tradition going back hundreds of years for lawyers first responsibility being as officers of the court. That is now largely considered obsolete.
Dave,
The Obama administration was slapped down by the 5th Circuit for failure to follow the APA for the predecessor to DACA. The Supreme Court accepted the case in early 2016 but deadocked 4-4 in June, as the case was heard after Justice Scalia’s death, thus sustaining the 5th’s decision.
Thanks, James. That supports my point: the angst over the Supreme Court’s decision is misplaced. It was the right decision.